New York State Court of Claims

New York State Court of Claims

FARQUHARSON v. THE STATE OF NEW YORK, #2002-005-013, Claim No. 99890


Synopsis


Where both the Claimant and the State Police Investigator both testified credibly, one alleging confinement and handcuffs, and the other denying the same, Claimant did not offer any other proof that would permit a finding that he proved his claim by a fair preponderance of the credible evidence. Claim dismissed.

Case Information

UID:
2002-005-013
Claimant(s):
EDWARD FARQUHARSON
Claimant short name:
FARQUHARSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99890
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Alan L. Hirshman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Denis J. Mc Elligott, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, a resident of Laurelton, New York, alleges in his claim causes of action,
inter alia, for false arrest, false imprisonment and assault and battery, all by the New York State Police. The trial of this claim was bifurcated and this decision addresses the issues of liability only. There were two witnesses at the trial, the Claimant and the New York State Police investigator.
Prior to addressing the proof at trial, a preliminary matter must be resolved. The claim herein was served on February 25, 1999, and filed on March 1, 1999, and alleges in Paragraph 8, that a Notice of Intention (to file a claim) was served upon the Defendant on September 8, 1997. The claim alleges,
inter alia, causes of action accruing on July 26, 1997, and sounding in false imprisonment, false arrest, reckless assault, and violation of Claimant's constitutional and civil rights under 42 USC §1983, and certain allusions to negligence. First, the Court of Claims has no jurisdiction over any causes of action founded upon 42 USC §1983 (Brown v State of New York, 89 NY2d 172; also see, Will v Michigan Dept. of State Police, 491 US 58, holding that 42 USC §1983 cannot be used as a basis for suit against a state). Second, the remaining causes of action are all intentional torts for which there is a one year statute of limitations (CPLR 215[3]). Even when utilizing a Notice of Intention to file a claim, to the extent that intentional torts are alleged, the claim must be served and filed within one year of the accrual of such claim (Court of Claims Act §10[3-b]).
Thus, it is apparent here that with such intentional torts accruing on July 26, 1997, the claim was served and filed some seven months after the expiration of the one year period specified in the statute, and was untimely served and filed. The claim's allusions to negligence, leaving aside questions as to the sufficiency of such allegations, do not apply to this discussion.

Curiously however, the Defendant's answer, dated April 5, 1999 and filed a few days later, does not raise "[a]ny objection or defense based upon failure to comply with (i) the time limitations contained in section ten" (Court of Claims Act §11[c]), and no motion to dismiss was made. Accordingly, while the claim here is clearly untimely as noted above, any defenses related to timeliness were waived by the Defendant, and the affected causes of action may not be dismissed on that jurisdictional ground.

On February 17, 1996, at approximately 3:30 a.m., Claimant left his Long Island home operating his wife's 1994 Ford Tempo on his way to work at Newsday, a Long Island newspaper. He was traveling easterly on Southern State Parkway. That morning was cold, snow had accumulated and the driving was difficult. As he approached Exit 35, another motor vehicle stopped in front of him. As he passed the stopped vehicle he brushed or touched the other in a minor accident. He stopped, got out of his car and the four occupants in the other vehicle jumped out. They were all young men and two of them approached Claimant, one with a pocket knife, while the other two stationed themselves in front of their vehicle, one with a shiny looking object or as Claimant conjected, "it could be a gun." A short discussion and altercation ensued and one young man forcibly departed with Claimant's vehicle and continued eastbound on Southern State Parkway while the other three followed in their vehicle. This incident might well be characterized as a "car-jacking."

Claimant walked from the scene to a gas station that was three quarters of a mile away where he tried to call his employer but the telephone call did not go through. He states that he intended to explain the reason for his absence, ask for someone to pick him up and to call the police to report the robbery. Then, two other individuals entered the station, Claimant told them what had occurred, and they offered to drive him to Newsday in their pickup truck. Once at his job he called "911" and told the police operator what had happened. The "911" Center was operated by Suffolk County and they relayed the information to the New York State Police who had jurisdiction over Southern State Parkway.

The State Police responded, met with Claimant at his place of employment, and escorted him to their barracks in Islip Terrace where Claimant met Investigator Daniel Regini to whom he gave a statement. Over the next 16 months, Claimant spoke with Regini some four or five times. The results of the investigation raised in Regini's mind the possibility that the robbery was contrived and that the Claimant was a willing participant.

At the time of these events, Claimant was 61 years old, married, owned his private home and had been employed as a machinist by Newsday for fifteen years earning in excess of one thousand dollars a week. He had never been arrested, let alone convicted of a crime. The State Police investigation continued until the stolen car was recovered and a suspect was arrested on July 17, 1997, 17 months after the car first disappeared. The suspect did not involve or implicate Claimant in any way. Nonetheless, Investigator Regini still entertained suspicions that Claimant was involved in the car's disappearance and ten days later, on July 26, 1997, he telephoned to request that Claimant come to the State Police barracks in Farmingdale, from where he would drive Claimant to the State Police barracks in Islip Terrace.

Up to this point in time, both men basically agree upon the factual occurrences. The State Police Investigator now wanted to surprise Claimant by abruptly showing him the vehicle and then observing his demeanor upon seeing the now recovered car. The State Police still considered Claimant to be a suspect and, prior to arriving at Islip Terrace, while still in the police vehicle, Investigator Regini orally gave Claimant his Miranda rights.

Claimant's version of the events differs from that of the Defendant's. He alleges that upon his arrival at Farmingdale he went into the police barracks, whereupon he was placed under arrest, was handcuffed behind his back, was abusively interrogated, and then transported to Islip Terrace where he was handcuffed to a bench and threatened. He asserts that he was denied the right to make a telephone call. Then, Claimant testified that the State Police Investigator, without making any comments, took the handcuffs off, and transported Claimant back to his car in Farmingdale. Claimant then drove home.

Investigator Regini provides a completely different version of the event. His suspicions were aroused at first when Claimant did not call "911" from the gas station but waited some forty-five minutes (actually, a total of 50 minutes from the time of the car-jacking) until he was at his place of employment. As the investigation progressed, Regini agrees that he telephoned Claimant, arranged to meet him at the Farmingdale State Police barracks, and then transported him in a police vehicle to Islip Terrace where he questioned Claimant for almost three hours and then transported him back to his vehicle in Farmingdale. He denies that Claimant was ever handcuffed. He testified that he never placed Claimant under arrest, but openly admits that he fully intended to arrest him at the Islip Terrace barracks on July 26, 1997, but did not do so.

I find that the Claimant and the Investigator both testified in direct, forthright and credible manners. Their versions of this entire incident are consistent with one another, with the sole exception of the events of July 26, 1997, after Claimant entered the police vehicle in Farmingdale and then returned to it some three hours later.

This matter was submitted for decision in the aftermath of the lost shadows of the World Trade Center and the sharpened focus that the tragedy of 9/11 brings to the delicate balance between individual civil rights and the power of the police.

Claims relating to false arrest and false imprisonment in particular often walk the precarious tightrope balancing society's desire to be safe and secure and the individual's right not to be falsely accused or arrested. These principles form one of the cornerstones of our society and the rule of law.

The traditional review of false arrest/imprisonment claims generally starts with the recitation of the essential elements of the cause of action, clearly defined by the Court of Appeals in
Broughton v State, 37 NY2d 451, 456. Claimant "must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." And here, I could engage in the application of the established facts to those elements and then decide this claim.
But this claim is not so simplistically resolved. I have sat on the bench for over 25 years and had the opportunity to gauge and assess the credibility of witnesses on thousands of occasions. Thus here I had Edward Farquharson who testified credibly about the underlying events concerning the theft of his vehicle and his trip to Farmingdale and back and forth to the State Police substation in Islip Terrace. I listened to his testimony about being questioned, confronted, handcuffed, imprisoned, arrested and then released. I believed him.

New York State Police Investigator Daniel Regini also testified credibly about all the circumstances and his investigation that led to the day when he intended to confront Claimant with the suspicions he harbored, and observe his demeanor when he viewed his recovered car. He too described the events of that day, the trips back and forth between Farmingdale and Islip Terrace. I believed him.

The crux of the dilemma is that Claimant avers under oath that he was handcuffed and confined, while Defendant avers under oath that no handcuffs were used and Claimant was not in confinement. These were two honest, forthright and credible witnesses, and I am unable to cast doubt upon the veracity of either. Obviously both versions of the events are inconsistent with one another. I scoured the record for independent uncontroverted evidence that would unbalance the scale. There was no demonstrable proof tending to corroborate the alleged application of handcuffs.

A claimant bears the burden of proof by a fair preponderance of the credible evidence (see, PJI 1:23). As the trier of facts, I must determine whether each witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22; see also,
Johnson v State of New York, 265 AD2d 652; De Luke v State of New York, 169 AD2d 916).
Thus my decision here devolves to assessing whether Claimant has satisfied this burden. I find that he has not. Unlike the rules of baseball where a tie goes to the runner, in the Court of Claims Claimant's proof must preponderate over that of the Defendant. It did not, and thus the claim must be and hereby is, dismissed.

All motions heretofore not decided are denied.

Let judgment be entered accordingly.


September 30, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims